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Property Distribution by Intestate Succession

If a legal title owner dies without a valid will, or if her will doesn’t dispose of some property that she owned, state law directs who gets the property. Someone who dies without a will is said to die intestate.

The person herself may be referred to as the intestate. So the statutory distribution of such a person’s property is called intestate succession. People who receive property by intestate succession are referred to as heirs.

Even though state intestate statutes vary, they all provide that a surviving spouse has the right to some of the deceased spouse’s estate if she died intestate. Some states that don’t recognize same-sex marriages do recognize same-sex civil unions or domestic partnerships, and such partners have the same rights of intestate succession as spouses.

The surviving spouse’s share generally depends on which other kindred survive, as follows:

  • If the deceased spouse leaves surviving children or descendants of children, the surviving spouse may get one-third or half of the deceased spouse’s property.

  • If the deceased spouse leaves no surviving children or descendants of children, the surviving spouse may get half or all of the deceased spouse’s property.

  • If the deceased spouse leaves no surviving descendants, parents, or siblings, the surviving spouse generally gets all of the deceased spouse’s property.

These statutory shares take the place of the husband’s common law curtesy interest and the wife’s common law dower interest.

The intestate’s property that doesn’t go to a surviving spouse is distributed in the following order:

  • Children: If the intestate had children, the children take the property in equal shares. An adopted child is a child of both the adopting parents and the natural parents. Stepchildren and foster children, however, aren’t included among the intestate’s heirs.

    If a child is dead, the living descendants of the child take that child’s share per stirpes, meaning that those living descendants collectively own that deceased child’s share; they don’t each share equally with the living children of the intestate.

  • Immediate family: If the intestate has no surviving children or descendants of children, then the intestate’s mother, father, sisters, and brothers take the intestate property equally. If a sister or brother is dead, that sibling’s descendants take the share per stirpes.

  • Other family: If the intestate has no surviving spouse, children, descendants of children, parents, siblings, or descendants of siblings, the intestate’s property goes to the intestate’s grandmother, grandfather, aunts, and uncles, with descendants of deceased aunts and uncles taking the deceased aunt’s or uncle’s share per stirpes.

  • Escheat: If the intestate leaves none of these heirs surviving, the intestate’s property escheats to the state.

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